is Of Counsel at Womble Carlyle Sandridge & Rice, LLP and practices all aspects of intellectual property law, domestically and internationally. A registered patent lawyer, Hopkins focuses her practice on trademark clearance, registration and enforcement. She also represents clients in trademark opposition and cancellation proceedings before the U.S. Trademark Trial and Appeal Board. In addition, she regularly represents clients in trademark, patent and copyright and advertising matters, including litigation, both at the U.S. District Court and Court of Appeals levels. Ms. Hopkins is the Chair of the Intellectual Property Section of the Maryland State Bar Association and is a frequent author and speaker on trademark and IP issues. For more information, or to contact Ms. Hopkins, please visit her firm profile page.
Design patents cover visual, nonfunctional characteristics embodied in, or applied to, an article of manufacture. They may relate to the configuration or shape of an article, the surface ornamentation applied to an article, or to a combination of the two. Ultimately, a design patent protects only the appearance of the article and not its structure or functionality. Trade dress is a type of trademark that refers to the image and overall appearance of a product. Trademarks protect brands and the goodwill associated with the brand. A trademark is used to identify the source of goods or services and is used to distinguish the goods and services of one seller or provider from another. Trade dress can include product packaging, product shape and color, and the look and feel of a restaurant or retail store.
Tam appealed to the Trademark Trial and Appeal Board (the “Board”), but the Board affirmed the Trademark Examiner’s refusal to register the mark. The Board found that although THE SLANTS has several meanings, the record demonstrated that it was “abundantly clear” that the likely meaning of the mark referred to people of Asian descent. Mr. Tam again appealed, this time to the Federal Circuit, arguing that § 2(a) is unconstitutional. The first time around, the Federal Circuit agreed with the Examiner and the Board. In a rare procedure, the Federal Circuit sua sponte ordered a rehearing en banc to review the constitutionality of § 2(a). Upon rehearing en banc, the Federal Circuit overturned McGinley in its 9-3 decision.
From implementation of sections of the Leahy-Smith America Invents Act to anticipated decisions from the Supreme Court, we can expect changes to the patent system that will affect the high tech and biotechnology industries, start up companies and established businesses of all sizes. Just some of the developments we can expect to see include a determination of whether genes are patentable, proposed legislation addressing the litigation strategies of non practicing entities, and harmonization of the US with much of the world through the implementation of the first-to-file patent application system and the introduction of an international design patent application process.